Don’t Kid Yourself; John Roberts Didn’t Do Conservatives Any Favors On Obamacare

Going into the Supreme Court decision yesterday, a lot of conservatives seemed to be extremely confident that the court would strike down Obamacare or, at a minimum, would at least kill the individual mandate. I wasn’t so sure.

I don’t know what the SCOTUS is going to do on Obamacare tomorrow. They can be hard to figure sometimes.

As it turned out, Scalia, Thomas, Alito and even Kennedy concluded that Obamacare is unconstitutional, while John Roberts sided with the liberal justices to make Obamacare the law of the land.

Bizarrely, quite a few conservatives are treating this like some kind of win because Roberts made a couple of perfunctory gestures. He nodded towards federalism by saying that the federal government can’t use Medicaid to blackmail the states over Obamacare. He also noted that Obamacare can’t be justified under the Commerce Clause. Supposedly, these are precedents that will be used to dramatically reel in government overreach in the future.

That seems like a rather odd interpretation of events given that John Roberts just signed on to one of the largest expansions of government power sanctioned by the court since the thirties. Per John Roberts, the federal government can now compel you to buy anything from Barack Obama’s autobiography to a Chevy Volt, to union made TVs as a condition of citizenship. If you refuse to buy those products, they can make you pay a fine and if you continue to defy the government, they can put you in prison. According to John Roberts, all of this would be perfectly constitutional.

In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (aka ObamaCare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it’s constitutional under Congress’s power to tax. It is on these grounds that Roberts upheld the constitutionality of ObamaCare, siding with the four liberal justices of the bench.

The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!

At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution’s Commerce Clause, he had as a backup the argument that it was also justified by Congress’ power to levy taxes — in other words, that it was a tax.

Justice Samuel Alito saw the conflict right away.

“General Verrilli, today you are arguing that the penalty is not a tax,” Alito said. “Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

“No,” answered Verrilli.

At the time, some observers found the whole thing a little boring; the real action would come the next day, when the court got to the question of whether the Commerce Clause could be stretched to include the individual mandate.

But a lot of those same observers were shocked on Thursday, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court’s four liberal justices, Ginsburg, Breyer, Sotomayor and Kagan, who seemed prepared to uphold Obamacare under any circumstances.

Roberts’ sleight of hand drove his conservative colleagues nuts. “The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes,” wrote dissenters Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”

After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not — repeat, not — a tax. But it no longer mattered. “Call it what you will,” said former House Speaker Nancy Pelosi.

Some people have pointed out that this might have some political benefits. After all, given the unpopularity of Obamacare, the best thing that probably could have happened to Obama would have been for the court to make the entire issue null and void by declaring Obamacare unconstitutional. That would have motivated Obama’s supporters, given him a fund raising tool, and would have taken a powerful incentive to go to the polls away from Republicans. Moreover, because Obamacare has officially been declared a tax, Republicans can use that against Obama. Unfortunately, to get that minor political advantage, Roberts had to widen the definition of a tax so much that he in effect granted the government an extraordinary new power. Whether that extraordinary new power is justified as a tax or an expansion of the Commerce Clause doesn’t change the fact that it’s still an extraordinary new power.

Furthermore, as Rich Lowry writes in his latest column, Roberts performed a rather strange bit of judicial jujitsu. Democrats in Congress explicitly, in the strongest of terms, said the mandate wasn’t a tax. Roberts is in effect rewriting the bill to say that it is. Of course, if it had been identified as a tax from the get-go, it seems unlikely that it would have made it through Congress.

As a result, there’s Obamacare as passed by Congress. Then there’s Obamacare as passed by the Supreme Court.

Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.

In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress – and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.

…As chief justice, Roberts has competing priorities, of course. But it’s not his job to redraft laws under the guise of judicial restraint.

Why did Roberts do this?

Well, it’s entirely possible that Roberts has already started going down the same path as Breyer, Souter, and to a lesser degree, O’Connor and Kennedy. Liberals who’re appointed to the court slavishly vote for whatever helps liberalism the most. Conservatives sometimes stick to originalism and at other times, move to the left. Roberts may be beginning this journey — which also probably explains some of the reluctance by some conservatives to criticize him for his execrable decision. The thinking may be that if we beat up on him for shredding the Constitution, it may make him more likely to move towards the Left.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance – on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?

“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5—4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy – the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result – a 5—4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

…Result? The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.

See? According to Charles Krauthammer and many other conservatives, this is a master stroke by Roberts! He maintained the court’s neutrality and reined in federal power at the same time — except that ignores the fact Roberts twisted himself like a pretzel to dramatically expand the government’s power to levy a tax in return for some meaningless platitudes about the Commerce Clause. So what if 4 liberal justices agreed with Roberts that the Commerce Clause should be contained? We all know every last one of them will flip the next time the issue comes before the court and then, if Anthony Kennedy stands firm, it’ll be up to the same judge who lacked the courage to strike down Obamacare. The next time a controversial high impact decision comes before the court, is Roberts suddenly going to rule like an originalist instead of a statist who’s afraid the Left will be angry with him? If he really had that in him, where was it this time around?

John Roberts once famously compared himself to an umpire. Well, yesterday the umpire knowingly called a ball a strike because he was afraid of getting booed by the fans of the team that was going to lose. Today those same people will all be praising him for abandoning his principles. Since Roberts is on the Supreme Court for life, all the rest of us can do is hope that this was a temporary failure to stick to his principles, not the start of a long string of disappointments.